People v. Jenkins

• Decision Date: 29 March 1990
• Citation: 75 N.Y.2d 550,555 N.Y.S.2d 10,554 N.E.2d 47
• Parties: , 554 N.E.2d 47, 58 USLW 2618 The PEOPLE of the State of New York, Appellant, v. Alexander JENKINS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 10

555 N.Y.S.2d 10

75 N.Y.2d 550, 554 N.E.2d 47, 58 USLW 2618

The PEOPLE of the State of New York, Appellant, v. Alexander JENKINS, Respondent.

Court of Appeals of New York.

March 29, 1990.

[75 N.Y.2d 552] [554 N.E.2d 48] Robert T. Johnson, Dist. Atty. (Jonathan R. Walsh and Billie Manning, New York City, of counsel), for appellant.

James A. Cohen, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

On this appeal from an order of the Appellate Division, 145 A.D.2d 225, 538 N.Y.S.2d 243, reversing defendant's conviction, after jury trial, of robbery in the second degree and ordering a new trial because the prosecutor purposefully excluded blacks from the petit jury in violation of the Equal Protection Clause of the Fourteenth Amendment (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69), the People argue that no pattern of discriminatory use of peremptory challenges was shown and that because the number of blacks remaining on the jury, despite the exercise of their peremptory challenges, reflected the percentage of blacks in the community, any presumption of discriminatory use of peremptory challenges was overcome. Alternatively, the People urge that by ordering a new trial instead of remanding for a hearing, the Appellate Division improperly deprived them of an opportunity to offer nonpretextual, race-neutral reasons for the suspect peremptory challenges.

We conclude that defendant demonstrated a prima facie case of discrimination in the People's use of their peremptory challenges, but because we agree that the Appellate Division's remedial action was improper, we modify by remitting to that court for further proceedings in accordance with this opinion.

I

Defendant and codefendant Ronald Johnson, both of whom are black, were indicted for various crimes arising out of an armed robbery of a supermarket in Bronx County and a subsequent exchange of gunfire with pursuing police officers. The indictment charged them with two counts of attempted murder of a police officer, robbery in the first and second degrees, and criminal possession of a weapon.

During the voir dire at the ensuing trial, a total of 10 black and 37 white and Latino surname prospective jurors were examined during nine rounds of questioning. The prosecutor exercised 10 peremptory challenges, 7 of which were used to remove 7 of the 10 blacks on the panel while only 3 were used against the 37 white and Latino surname members of the panel.

The Appellate Division concluded from its examination of the record that the seven blacks challenged by the prosecution were a heterogeneous group of both sexes from different occupations and social backgrounds. Four of them were identifiable: one of the males was a psychiatric aide married to a former nurse; another male was a Con Edison employee; a third male was a computer programmer who had served on a Grand Jury and the female was an unemployed factory supervisor whose husband and child were employed by a food company. The record did not specifically identify which three of the remaining six venirepersons peremptorily challenged by the prosecution were black. However, of the three blacks on the panel not peremptorily challenged by the prosecutor, two had associations with law enforcement: one was a part-time security guard at Shea Stadium and Madison Square Garden whose duties included restraining alleged wrongdoers and turning them over to the police; the other had a brother in law enforcement and had served on a Grand Jury for a "number of years." Defense counsel challenged these two prospective jurors and the one remaining black was seated on the final jury along with 11 whites.

In support of a timely mistrial motion, defense counsel pointed out for the record that both defendant and his counsel, as well as the codefendant were black, and that the population of Bronx County was at least 50% black. ^* Defense counsel also argued that the prosecutor was aware that a prudent defense attorney would exercise peremptory challenges against two of the black venirepersons not removed by the prosecution since one was associated with law enforcement and the other a "professional grand juror." This, he argued, was consistent with the prosecutor's strategy to allow a token number of blacks to remain on the panel unchallenged in order to avoid a charge of systematic exclusion.

During the colloquy following a defense objection to the peremptory strikes, the prosecutor volunteered that "if [counsel] would like me to go [in]to the qualifications of each of the other jurors, I would go through them at this time." The trial court denied the mistrial motion, concluded that there had not been any systematic exclusion and declined the prosecutor's offer to explain her challenges. The jury subsequently convicted defendant of second degree robbery. On appeal, a divided Appellate Division reversed the conviction and ordered a new trial, concluding that a "pattern of strikes against black[s]" (145 A.D.2d, at 233, 538 N.Y.S.2d 243), evincing a discriminatory use of peremptory challenges had been established. Leave to appeal to this court was granted to the People by a dissenting Justice of the Appellate Division.

The People argue that inasmuch as the prosecutor did not exclude all blacks from the jury defendant failed to establish a prima facie showing of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, supra. They further argue that since three blacks were left unchallenged by the prosecutor, the defendant had a jury containing a percentage of blacks (25%) closely reflecting the percentage of the black population of The Bronx at the time of trial (30%). Based on these percentages they argue that defendant cannot establish a "real claim of discrimination" because he was not prevented by the actions of the prosecutor from having a jury whose racial makeup was roughly representative of his own race in the community. Additionally, they contend that in concluding that there had been a Batson violation, the Appellate Division considered as a "relevant circumstance", improperly ascribed to the People, the defendant's exercise of two peremptory challenges against black venirepersons. Finally, the People argue that in any event, assuming a prima facie case of racial discrimination in jury selection was established, by ordering a new trial of this 10-year-old case rather than remanding for a hearing, the Appellate Division deprived the People of an opportunity to demonstrate nonpretextual race-neutral reasons for the exercise of their peremptory challenges.

II

That the racially motivated exercise of peremptory challenges by the prosecution violates the Equal Protection Clause of the Fourteenth Amendment, is no longer open to question. (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, supra; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649; People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208; see also, People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [decided today].) In order to establish a prima facie case of discrimination based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the petit jury, a defendant must show (1) that he or she is a member of a cognizable racial group, (2) that the prosecutor exercised peremptory challenges to remove members of the defendant's race from the venire, and (3) facts and other relevant circumstances sufficient to raise an inference that the prosecutor used the challenges to exclude people because of their race (Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1722-1724, supra; People v. Scott, 70 N.Y.2d 420, 423, 522 N.Y.S.2d 94, 516 N.E.2d 1208, supra ). In tendering a prima facie case of racial discrimination, defendant "may also rely on the proposition that peremptory challenges permit discrimination by those inclined to discriminate" (People v. Scott, 70 N.Y.2d 420, 423, 522 N.Y.S.2d 94, 516 N.E.2d 1208, supra ) and the court may properly consider that a " 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." (Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, supra.) Once defendant has made a prima facie showing of discrimination, the burden shifts to the prosecution to come forward with nonpretextual race-neutral explanations for challenging the black jurors (id., at 96-97, 106 S.Ct., at 1722-1723). It is not sufficient for the prosecution to merely allege its good faith or to claim that those jurors strickent likely would be biased because they share the defendant's race (Batson v. Kentucky, 476 US 79, 96-98, 106 S.Ct. 1712, 1722-1724, supra; see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621).

Turning to the facts of this case, we agree with the Appellate Division majority that a "pattern of strikes" was established prima facie. The prosecutor used only 10 peremptory challenges, 7 of which were used to strike 7 of the 10 blacks on the venire, while only 3 peremptory challenges were used against the 37 nonblacks. Not only were a disproportionate number of blacks excluded, but also the prosecutor's exclusion of black venirepersons who as the Appellate Division concluded were "a heterogeneous group of both sexes with different occupations and social backgrounds" (145 A.D.2d, at 232, 538 N.Y.S.2d 243) and did not otherwise appear to be unsuited for jury service on this case, raises an inference that the prosecutor impermissibly measured prospective black jurors by an unconstitutional standard: specifically, their race. These circumstances were sufficient to establish a "pattern of strikes" against black prospective jurors based " 'solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant' " (People v. Scott, 70 N.Y.2d 420, 425, 522...